USCIS Proposal Could Eliminate Need for Departure Before Waiver Processing

On January 6, 2012, US Citizenship and Immigration Service (USCIS) published a Notice of Intent in the Federal Register, laying out a proposal that would allow certain immediate relatives of U.S. citizens to request waivers of inadmissibility (I-601 waivers) prior to departing the United States for consular processing of their visa applications. An applicant would be able to obtain such a waiver with an approved I-130 which classifies him or her as an “immediate relative” for purposes of the immigration laws.  The waiver requires the applicant to show that the denial of the waiver would result in extreme hardship to the alien's U.S. citizen spouse or parent.

Certain grounds of inadmissibility can bar immigrant applicants from being admitted to the United States or obtaining an immigrant visa, and prevent U.S. citizens from reuniting with their immediate relatives. USCIS may waive some of those grounds, most commonly unlawful presence in the United States, when the applicant obtains a waiver from USCIS after demonstrating hardship to their qualifying relative.  The Department of States (DOS) may only issue visas after the waiver is processed and approved by USCIS.  Currently the process requires applicants to depart the U.S. and apply for waivers after an initial interview with the DOS.  Waiver processing then takes anywhere from 1 month to several years, during which time the applicant must remain outside of the U.S. separated from his or her relatives.  The proposed procedure would greatly alter the system, allowing families to stay united until their waiver have been approved and the DOS is ready to issue their visas. USCIS explained the basis for its proposed policy:
 
"The proposed change would create a more streamlined and efficient
process for waiver applicants whose sole inadmissibility ground is
unlawful presence, while simultaneously minimizing family separation.
If the waiver determination, with respect to unlawful presence, were
made in advance of the immigrant visa interview and the applicant
otherwise were eligible for the immigrant visa, the consular officer
could simply issue the immigrant visa at the time of the visa
interview. The new process thus will reduce the movement of the case
back and forth between the Department of State and USCIS, which
significantly prolongs the overall process and increases the time that
U.S. citizens are separated from their immediate family members.
Additionally, the new process would reduce U.S. Government costs
associated with the movement of cases, and provide a more efficient
visa process overall."
 
USCIS proposes that this new process be limited to immediate relatives of U.S. citizens, and only those who are barred due to unlawful presence.  This does not include those subject to other bars such as fraud, misrepresentation, prior removal orders, and others.  We will be writing updates about the proposal as they become available.  The next step will be for USCIS to publish a Notice of Proposed Rulemaking, which opens the process to public comment.  The process will not be final until a final rule is published, probably at least several months from now.  It is impossible to know how the final rule will differ from the initial proposal from last week, if at all.

Note that this change  will not mean that persons who need certain types of waiver will not have to depart—they will eventually have to go abroad. However, the great benefit of this change is that such persons will have assurance of a positive outcome on the waiver before traveling, and will spend much less time abroad away from their families.